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Workplace Safety in Arizona: Update on OSHA’s Proposal to Revoke State Plan

On April 21, 2022, the federal Occupational Safety and Health Administration (OSHA) issued a a proposed rule to revoke Arizona’s occupational safety and health (OSH) plan’s final approval under Section 18(e) of the Occupational Safety and Health Act of 1970. In its notice, OSHA proposed revoking its affirmative determination granting final approval to Arizona’s state OSH plan, which, if implemented, would return Arizona’s plan to “initial approval” status resulting in discretionary concurrent enforcement jurisdiction between OSHA and the Arizona Division of Occupational Safety and Health (ADOSH). Written comments were originally due by May 26, 2022, but the agency extended that deadline to July 5, 2022.

OSHA bases the proposed revocation on the claims that the Arizona state plan is not “at least as effective as” federal standards. Particularly, OSHA points to Arizona’s alleged 2012 failure to implement residential construction fall protection requirements, alleged failure to “timely” adopt various national emphasis programs, and failure to adopt OSHA’s COVID-19 emergency temporary standards (ETS) for healthcare workers as an “emergency” rule.

State plans are OSHA-approved workplace safety and health programs operated by individual states. Arizona’s state plan is one of twenty-eight state plans authorized by OSHA.

OSHA received 197 comments to its proposed rule. Some notable comments include:

The Industrial Commission of Arizona (ICA) and ADOSH submitted a strongly worded rebuke of the proposed rule questioning “the selective manner in which OSHA has presented ‘the facts’ in the Federal Register notice and [omission of] any facts inconvenient to [OSHA’s] agenda.” ADOSH also defended its decision not to adopt OSHA’s COVID-19 healthcare ETS as an emergency rule by noting that the ICA determined that COVID-19 did not pose a sufficiently grave danger to justify enacting the standard on an emergency basis, thereby “depriv[ing]” the citizens of Arizona of the protections of notice and comment rulemaking. Instead, Arizona’s legislature approved and adopted OSHA’s healthcare ETS through its normal rulemaking process.

The ICA and ADOSH also stated that OSHA has not defined or provided adequate guidance of the definition of the “at least as effective as” standard. The state pointed out that the U.S. Department of Labor’s (DOL) Office of Inspector General concluded in 2011 that OSHA “[h]as [n]o [w]ay to [m]easure the effectiveness of its [o]wn [p]rogram, [l]et [a]lone” the effectiveness of state plans. The state also pointed out if effectiveness is measured by injury rates, the state’s standards are effective as, if not more effective, than national standards. Indeed, “Arizona consistently outranks most OSHA states in injury and fatality rates,” the ICA and ADOSH stated. The ICA and ADOSH argued that “a driving force behind its low rates” is Arizona’s ability to understand and focus on “the hazards associated with the industries and companies located within its state.”

The Arizona Hospital and Healthcare Association (AzHHA) urged OSHA not to revoke Arizona’s plan, responding specifically to issues related to the COVID-19 emergency temporary standard for healthcare workers. The AzHHA commended ADOSH’s response to COVID-19, noting that the agency “acted in good faith to seek clarification on the intersection of the Healthcare ETS with other laws and guidance.” The AzHHA concluded by noting, “In our experience, ADOSH and its staff have shown a strong commitment to protecting employee health and safety while working collaboratively with employers to build a culture of safety in the workplace. This is a balance that builds trust, cooperation, and most importantly advances OSHA’s mission of promoting occupational health and safety.”

The National Association of Home Builders of the United States (NAHB) noted that OSHA’s actions “will have a chilling effect on other State Plans states” that might otherwise consider changes to their state plans. OSHA’s actions could place states in an “untenable position” of assuming that “[a]ny slight deviation” from federal standards puts them at risk of having their state plan status revoked. The NAHB goes as far as describing the proposed actions as “arbitrary and capricious” and doing “a disservice to the purpose behind the Administrative Procedure Act and the rulemaking process.”

On the other side, the National Nurses Organizing Committee/National Nurses United (NNOC/NNU) submitted a comment in support of the proposed action. The NNOC/NNU argued that “ADOSH’s failure to adopt the Covid-19 Healthcare ETS has not only violated the State Plan’s legal obligations, … but it [also] places nurses and other health care workers at significant risk from Covid-19 infection and exposure.” To support its claim, the NNOC/NNU cited to surveys it conducted of its own members but does not cite to rates of COVID-19 infections or fatalities in other states.

The proposed rule is currently set for a public hearing on August 16, 2022.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XII, Number 202
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Nonnie Shivers, Ogletree Deakins Law Firm, Employment Litigation Attorney
Shareholder

Nonnie partners with employers and managers in three primary ways: litigation avoidance through proactive counseling and training; investigations and resolutions when pre-litigation concerns arise; and litigating legally complex and factually challenging cases to defend employer’s actions.  

Nonnie advises and counsels private and public employers in all aspects of employment law. Nonnie regularly partners with clients to plan and implement reductions in force, severance plans and agreements, and pre-litigation disciplinary matters. Nonnie...

602-778-3706
Shareholder

John D. Surma is a shareholder in the Houston, Texas office of Ogletree Deakins. His practice focuses on representing employers in workplace safety and health matters, including preventive advice and counseling, regulatory actions, and investigation.

John counsels and represent clients throughout the United States before a variety of regulatory agencies including OSHA, MSHA, the U.S. Chemical Safety Board, the Nuclear Regulatory Commission, the U.S. Environmental Protection Agency, the Federal Railroad Administration/American Association of...

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Karen Tynan, employment lawyer, Ogletree Deakins
Of Counsel

Karen Tynan is an of counsel attorney in the Sacramento office of Ogletree Deakins. Karen is originally from the state of Georgia, and after graduating with honors from the United States Merchant Marine Academy, she worked for Chevron Shipping Company for ten years – sailing as a ship's officer on oil tankers rising to the rank of Chief Officer with her Unlimited Master’s License as well as San Francisco Bay pilotage endorsement.  Karen was the highest ranking woman in the Chevron fleet when she left her seafaring life.  This maritime and petroleum experience is unique among employment...

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Andrew Levin Employment Litigation Attorney Ogletree Deakins Phoenix
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Andy represents businesses in a wide range of employment litigation and provides day-to-day advice to management on employment issues. Andy has experience with matters in federal and state court, including California class action lawsuits and high-stakes restrictive covenant disputes, including non-compete, non-disclosure, and non-solicitation agreements. He regularly defends litigation and administrative charges alleging discrimination, harassment, and retaliation violations. Andy also has experience assisting companies with internal investigations and those conducted...

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Ryan Swink Houston Employment Attorney Ogletree Deakins Nash Smoak & Stewart PC
Associate

Ryan Swink is an associate in the firm’s Houston office, where he advises and represents employers on all matters impacting their employees under federal and state labor and employment laws, including compliance with Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Family and Medical Leave Act (FMLA), and the Fair Labor Standards Act (FLSA). Ryan conducts investigations, handles charges of discrimination, harassment and retaliation, and defends any ensuing litigation in state and federal court.

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